Watson v. The State.

appellant complains because, as he alleges, the deceased was not, in fact, in a dying condition at the time he made the declarations, and, if so, he was not impressed with the fact of his approaching death.

A physician, who attended the deceased upon the day he died, testified: "The deceased suffered intense pain and was flighty. I think he was cognizant that he could not live, but did not so express himself to me. * * Do not wish to say that Compton knew he must die, but it seemed that, at last visit, it was patent to all that he must die. ** I did not tell Compton, nor any one in his presence, that he could not recover."

Other evidence shows, that, in a few minutes after he was shot, which occurred at his store, the deceased went to his house. His wife testified as follows:

66

My husband said when he came in, 'Don't take on the shot will kill me; I'll not get well.'**The morning of the next day, being the day he died, he said to me he could not get well; he said that all along, from the first to the last talk we had about it; he could scarcely speak above a whisper. He told me when and how he wanted to be buried, the same evening after he was shot. He never expressed any hope of recovery, but said all the time he could not get well. Don't think he asked for a physician at all. On Saturday morning, the day he died, he told me how the trouble occurred."

The mother of the deceased testified, that the deceased came to the house about two or three o'clock P. M., on the day he was shot; that he died about the same time on the next day, and that she was with him all the time until he died; that "He said he was killed; that he could never get well; he said, Mother, I never can, never can get well; I am killed.' He told me that on Saturday morning; he told me on Friday he was killed."

Upon this evidence the court, over the objections of the

Watson v. The State.

appellant, permitted the dying declarations of the deceased to be given in evidence to the jury.

We believe that the rule governing the admission of dying declarations was well announced in the case of Morgan v. The State, 31 Ind. 193, in the following words:

"The only safe rule for the admission of such declarations is, that the declarant must be fully persuaded that death is rapidly approaching; that it is so near that all motives to falsehood are superseded by the strongest motives to strict veracity; and that the proof render this condition of the mind clear to the judge before whom it is offered." See also Binns v. The State, 46 Ind. 311.

It seems to us that the evidence in this case, of the condition of the deceased, fulfils the rule as above stated, and that the court did not err in admitting evidence of the dying declarations of the deceased to go to the jury.

3. After discussing the above questions, the counsel for the appellant say:

"As to the other reasons for a new trial, that the evidence is not sufficient, and the verdict is contrary to law, we need only to ask the court to read over the evidence and consider it."

No argument is made upon these questions by the counsel, except to state three propositions:

1. That the evidence does not disclose any motive for the murder;

2. That the quarrel between the appellant and deceased excited the appellant's anger, which did not and could not cool during the brief interval that elapsed before the shooting was done; and,

3. That there was no premeditation shown.

Perhaps so brief a statement as this would have authorized us to hold that the questions under consideration were waived for want of an argument; but, as the case is

Fry v. The State.

capital, we were not satisfied to do so. We have, therefore, fully examined and considered the evidence in the case. It convinces us that there was no reasonable cause for anger on the part of the appellant, and that, if he became angry, sufficient time elapsed for his anger to cool before he shot the deceased, and that the deed was done with premeditation.

Upon the whole case, we are satisfied, beyond a reasonable doubt, that the verdict is sustained by sufficient evidence, and that it is not contrary to law.

The judgment is affirmed, at the costs of the appellant.

63 552 134 254

63 552 138 400

63 552 142 192 63 552 e161 255

FRY V. THE STATE.

CRIMINAL LAW.-Constitutional Law.—Brokerage in Railroad, etc., Tickets.— “Ticket Scalper.”—Police Regulation.—The act of March 9th, 1875, 1 R. S.、 1876, p. 259,"regulating the issuing and taking up of tickets and coupons of tickets by common carriers,” etc., is in the nature of a police regulation, is valid, and is not in conflict with the constitution of either the United States or this State.

SAME.-Impairing Obligation of Contract.-Monopoly.-Such statute does not impair the obligations of contracts, nor does it grant to any one privileges or immunities denied to others.

SAME. Inter-State Commerce.-Such statute does not violate section 8 of article 1 of the constitution of the United States, which confers upon Congress the power to regulate commerce "among the several States."

From the Marion Criminal Circuit Court.

R. B. Duncan, C. W. Smith and J. S. Duncan, for appellant.

T. W. Woollen, Attorney General, J. B. Elam, Prosecuting Attorney, C. Baker, T. A. Hendricks, O. B. Hord and A. W. Hendricks, for the State.

Fry v. The State.

Howк, C. J.-The indictment against the appellant, in this case, charged, in substance, that the appellant, on the 9th day of January, 1879, at and in the county of Marion, "did then and there unlawfully barter and sell, for a valuable consideration, to wit, the sum of ten dollars, to some person whose name is to the grand jurors unknown, a railroad ticket, the description and style of which said ticket is to the grand jurors unknown, for the reason that said ticket is lost and can not be found, entitling and evidencing the right of the holder thereof, to wit, the person whose name is to the grand jurors unknown as aforesaid, to travel and be transported over some railroad, the name and style of which said railroad is to the grand jurors unknown, running from the city of Indianapolis, in the county of Marion and State of Indiana, to the city of St. Louis, in the State of Missouri. The grand jurors aforesaid, upon their oath aforesaid, do further present, that, upon the said 9th day of January, A. D. 1879, at the time and place said Fry sold said ticket as aforesaid, to said person whose name is to the grand jurors unknown as aforesaid, to wit, at the county of Marion and State aforesaid, said Fry was not then and there the agent of the railroad whose name and style is to the grand jurors unknown as aforesaid, and said Fry was not then and there authorized to sell tickets or other certificates, evidencing the right of the holder thereof to travel and be transported upon said railroad, and he did not then and there have a certificate provided him by said railroad, setting forth his authority as agent of said railroad, signed by the managing officer of such railroad, and duly attested by its corporate seal; that said George W. Fry had not purchased the said ticket evidencing the right of the holder thereof to travel and be transported by said railroad from the said city of Indianapolis, in the county of Marion and State of Indiana, to the said city of St. Louis, in said State of Mis

Fry v. The State.

souri, from an agent of said railroad authorized to sell tickets or other certificates evidencing the right of the holder thereof to travel and be transported by said railroad, and provided a certificate setting forth his authority as such agent to make such sales, signed by the managing officer of said railroad, and duly attested by the corporate seal of said railroad, with a bona fide intention of travelling on the same. Wherefore the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge, that said sale of said ticket, by said George W. Fry, to said person whose name is to the grand jurors aforesaid unknown as aforesaid, and in manner and form aforesaid, was and is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana."

The appellant moved the court to quash said indietment, which motion was overruled, and to this ruling he excepted.

On arraignment, the appellant's plea to said indictment was that he was not guilty as therein charged.

The issues joined were tried by the court without a jury, upon an agreed statement of facts, and a finding was made by the court, that the appellant was guilty as charged in the indictment.

The appellant's motion for a new trial was overruled by the court, and to this decision he excepted, and judgment was rendered against him by the court on its finding, from which judgment this appeal is now here prosecuted.

Errors have been assigned by the appellant, in this court, which call in question the following decisions of the court below:

1. The overruling of his motion to quash the indictment; and,

2. The overruling of his motion for a new trial.

In their argument of this cause, in this court, the appel